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jury decide what facts are proved, what inferences should be drawn from these facts, and determine the result according to the standard fixed by the court.
The federal courts have adopted a rule on the subject almost identical with that of New York; but the adoption of this rule by them has been accomplished only after a long and continuous struggle in which the judges, frequently confronted by verdicts manifestly wrong, and due to prejudice or passion, have gradually yielded their assent to this doctrine, intending to remedy the evil.
The evil sprung naturally from the system constituting juries the sole judges of the facts, and these courts should have relegated the question of remedying this evil to the proper power.
There is rather an interesting phase of the doctrine of contributory negligence that arises in cases of injury to children, lunatics and other persons non sui juris.
In the State of New York it has been held, that if its parent or guardian permits a child of tender years, not having the discretion necessary for personal protection, to place itself in danger, whereby it is injured, the negligence of the parent or guardian is to be imputed to the child and the child cannot recover in an action brought in its behalf. This rule has been adhered to in New York and has been followed in many states of the union, although its injustice and impropriety are quite manifest. The English rule is, to some extent, a modification of the New York rule, for it is there held that if the child is in the actual custody and control of the parent or guardian at the time of the injury, the negligence of the parent or guardian must be imputed to it.
It is universally held that if the injury to the child is caused by the negligence of the parent in permitting it to expose itself to danger, that the parent himself cannot recover damages for his own benefit, and this rule seems to be perfectly sound; but the other rule, imputing to the child the negligence of the parent, has been the subject of much just criticism, and it illustrates, perhaps, as much as any other rule of law, the influence and power
corporations in establishing and maintaining those doctrines that relieve them from liability.
The number of children injured and killed in the densely populated districts of the large cities is very great. These children are usually the offspring of poor people who are unable to give them the care and attention that parents of more wealth exhibit toward their children. They are unable to provide nurses to watch them, and they must work and cannot give them their personal attention. As a result, children of this class are exposed in the cities to constant danger, and danger which, under the conditions surrounding them, is unavoidable. Under these circumstances the corporations have succeeded in establishing in many of the states the doctrine we have mentioned, which in practical effect compels the parent to either employ a nurse, or devote his own time to preserve his child from injury, and visits upon the child, as well as upon him, the consequences of his failure to do so.
The theory upon which the doctrine of imputed negligence is based is that the custody of the child is entrusted by law to the parent or guardian, and not having the discretion necessary for its own personal protection, the parent is held in law to exercise this discretion for it, and that in case of personal injury arising from the negligence of another, the negligence of the parent in exposing it to the injury or permitting it to expose itself thereto, is imputed to the child.
It is somewhat interesting to contrast with this rule the one declaring that a blind man who, unconsciously, on account of his defective eyesight, exposes himself to danger, is not guilty of contributory negligence and may recover if he is injured by reason of the negligence of another.
The blind man whose reason and judgment may be unimpaired, acting on his own responsibility, may recover, if without knowing it he walks in front of a moving train and is injured by the negligence of those operating it. He may recover because a blind man is excused if his only fault is that he did not see.
The child, non sui juris, permitted by the negligence of its parent to wander on the track, although its only fault is that it did not know the danger, cannot recover.
In Pennsylvania and in some other states, it is held that in determining the question whether the parent was guilty of negligence in caring for the child, the financial condition of the parent may be taken into consideration, and his inability, by reason of his poverty,
to give his child more attention, may be considered in determining the question of his negligence.
Our own supreme court, in the case of Roth v. Union Depot Co., 13 Wash. 525, have settled the doctrine of imputed negligence in this state, holding that in an action for the benefit of a child non sui juris, the negligence of the parent in permitting it to expose itself to danger is no defense to the action.
The decisions of the supreme court of this state, in most of the cases decided by them, involving the doctrine of contributory neg. ligence, have generally adopted the fairest and most reasonable rules governing the questions involved. They have, however, shown a tendency to encourage the practice of granting non-suits and directing verdicts in such cases, not at all consistent with the rules which they have adopted in the case of Mc Quillan v. The Great Northern R. R., 10 Wash. 464.
In this case the court recognizes the rule that it is within the province of the jury alone to determine not only the facts, but the inferences therefrom. They say “there are only two classes of cases in which the question of negligence may be determined by the court as a matter of law. The first is where the circumstances of the case are such that the standard of duty is fixed, and the measure of duty defined by law, and is the same under all circum"stances. The second is where the facts are undisputed and but one reasonable inference can be deduced therefrom.”
In other cases the court clearly applies the contrary rule, and determines the inferences from the facts as matters of law.
One case is a notable instance of this weakness, De Graf v. Seattle & Tac. Nav. Co., 10 Wash. 468.
A lady who was accustomed to travel on a steamboat between certain points, while making the trip was anxious to reach the shore as soon as possible so that she might take a train for another point. The steward of the boat told her that if she would go to the
upper deck she might land from it as soon as the boat touched the wharf without waiting for the gang plank to be put out.
He took her baggage and as the boat neared the wharf they proceeded to the upper deck, going up a narrow irs which handrailings. As the lady started up she seemed to doubt the propriety of doing so and asked the steward if it was customary for passengers to land from the upper deck. He merely directed her to “come on,” and while she was on the stairs the boat bumped against the wharf and she was thrown to the deck and injured.
The negligence of the officers of the boat was the failure to provide the stairway with a handrail.
The court held that as the plaintiff was accustomed to travel on the boat and knew that the boat would strike the wharf, she was guilty of contributory negligence in undertaking to ascend the stairs at a time when the boat was near the wharf.
In this case the court determined as a matter of law that the acts of the plaintiff amounted to want of ordinary care; whether there was a want of ordinary care shown by the conduct of the plaintiff was a question of fact which should have been determined by the jury.
The jury seemed to attach no importance to the fact that the ascending of the stairs at the time was done at the suggestion of the steward of the boat.
In the case of Irish v. N. P. R. R., 4 Wash. 48, the court held that a passenger might, without fault, get upon a train at such a time and place as would make him guilty of contributory negligence, under other circumstances, if it was done at the direction of the conductor, unless the danger in doing so was apparent.
If this decision is right, and there can be no doubt about it, the other decision is wrong, unless it is justified upon the theory that the danger was apparent to the woman on the boat. Under the circumstances that was a question for the jury.
So large a proportion of the people of this country are in the habit of riding bicycles, that the subject of their rights and liabilities is now a most interesting as well as important branch of the law of negligence. The character of this paper will not admit of any extended treatise on the subject, but a few remarks will be appropriate.
The authorities have settled the primary question, which is, that the bicycle is a vehicle, in the sense in which this word is used in the statutes and decisions, and that the law regulating the use of vehicles applies to it as well.
It is held that the riders of bicycles have the same rights on the road as the drivers of other vehicles, although they may frighten horses and unsettle the nerves of the people when they quietly steal upon them without warning, save the startling ring of the bell as they dash by.
Horses and people must accustom themselves to them, and it is no argument against the rights of their riders and owners that they were not used by Adam and Eve in the Garden of Eden, as one of the judges remarks.
There is a case, decided by one of the inferior courts of Pennsylvania, holding that it is not contributory negligence for one to leave his wheel in the street against the curb, with the pedal resting securely on the curb, and that one who negligently drives against it and injures it is liable for the damages.
It would be somewhat interesting to compare this case with the English case to which we have referred, in which the owner fastened his donkey too near the road.
Under the law of the road, as fixed by the statutes of this state, it is the duty of one rider of a wheel, meeting another, to turn to the right, although the riders find that apparently this law is not recognized by the women, as they usually go straight ahead, depending upon the gallantry of the men to clear the track for them. It does not follow, however, that one is guilty of contributory negligence, in the event of an accident, merely because he fails to turn to the right side of the road, although a presumption of negligence arises from such failure. If the defendant could have avoided the injury by the exercise of care he is liable, although the plaintiff failed to turn to the right.
The introduction of the many steam and electric appliances now in use have already so increased the dangers to life and property that this branch of the law has become one of the greatest importance, and with the tendency of the times we may expect still more radical changes in conditions of life and a corresponding increase in the importance of this subject and the frequency of its recurrence in the practice.
There are few civil cases in which the passions of the parties are so much aroused as in those involving this doctrine, and it is of supreme importance that the decisions of the courts should satisfactorily declare and maintain the legal principles governing their rights.